' AHMAD KHAN LASHARI, J.---The learned Additional Sessions Judge-I/Special Judge STA, Quetta vide judgment dated 30-5-2002, passed in Special Case No.06 of 2001, convicted and sentenced accused Gul Muhammad under section 302(b) P.P.C. To suffer R.I for life for committing murder of Abdul Zahir and to pay .Rs.1,00,000 as compensation under section 544 Cr.P.C. To the legal heirs of deceased, in default to further undergo S.I. For one year, under section 324 P.P.C. To suffer R.I. For 7 years with fine of Rs.30,000,000 payable to injured Abdul Ghafoor and Abdul Lateef, in default whereof to further suffer S.I. For six months with benefit of section 382-B Cr.P.C. The accused Gul Muhammad has challenged his conviction in Criminal Appeal No.162 of 2002 while complainant Abdul Ghafoor has filed Constitutional Petition No.332 of 2002 seeking enhancement of the sentence to death penalty. Since both these matters are outcome of the one and same judgment, therefore, we propose to dispose of them with this common judgment.
2. The stated facts of the prosecution .Case are the complainant Muhammad Tahir in his report dated 7-8-1999 recorded vide F.I.R. No.10 of 1999 at Levies Thana Surkhab, offence under sections 302/324 P.P.C., alleged that on 7-8-1999 at about 7.00 A.M. His brother Abdul Zahir and his two sons Abdul Ghafoor and Abdul Lateef went to Surkhab Camp to participate in a Khairat. When they were sitting in front of their house accused Gul Muhammad son of Malik Muhammad Siddique Caste Kakar, resident of Surkhab Camp, came and quarreled with them for their sitting there. He thereafter went to his house and came back with a Kalashnikov and by firing killed his brother at the spot and injured his nephews. The deceased and injured were taken to hospital. P.W.8 Maqbool Anwar Naib Tehsildar Pishin, after registration of the case reached at Civil Hospital Pishin along with Levies personnel and prepared the inquest report Ex: P/8-A and seized blood-stained clothes of deceased. He along with the accused, who was already arrested in the case, reached at the place of incident and prepared site sketch Exh. P/8-D, 17 empites of Kalashnikov were collected from the place of incident and blood-stained earth-cum stones were secured. The accused produced the Kalashnikov having a live bullet in the chamber and the magazine containing 28 bullets. The accused failed to produce any licence or permit of the Kalashnikov as such a case under section 13-E of Arms Ordinance, 1965 was also registered against him. The statements of witnesses were recorded, the Kalashnikov and empties collected from the place of incident and the blood-stained clothes were dispatched to experts and the reports along with challan was filed in the Court of learned Additional Sessions Judge-I/Special Judge STA Quetta and the appellant was sent up to face trial.
3. The charge framed in the case was read over to the accused, who did not plead guilty and claimed trial. The prosecution to substantiate the accusation against accused produced P.W. 1 complainant Muhammad Tahir, P.W. 2, Abdul Ghafoor and P.W.3 Abdul Lateef are the injured witnesses, P.W.4 Abdul Malik is witness to the recovered crime articles from the place of incident, the Kalashnikov produced by the accused, P.W.5 Dr. Anjum Shahzad, examined the dead bodies, P.W.6 Farhaj Bukhari Fire-arm Expert produced the report Exh.P/6, P.W.7 Dr. Sarwar Shah Hashmi, examined the injured, P.W.8, Maqbool Anwar Naib Tehsildar Pishin, is the Investigating Officer. After close of prosecution evidence the accused was examined under section 342 and his statement on oath provided and section 340(2) Cr.P.C. Was recorded, he denied the prosecution allegations and took plea of self-defence. The accused in defence produced his wife D.W.-1, Shahzadi alias Bano.
The learned trial Court after hearing the parties convicted and sentenced the appellant as mentioned hereinabove.
4. Mr. Shams-ud-Din Advocate learned counsel for appellant argued that the eye-witnesses have not come with clean hands and true facts the incident did not take place in the manner and circumstance narrated by them. The motive set up by the prosecution for the offence remained unproved and the defence version being reasonably true and more probable has been established. The learned trial Court by ignoring the plea of appellant illegally convicted him for the offence. He in support of his contentions referred the following case-laws reported in:--
(1) 1995 SCMR 1846.
(2) 1992 PCr.LJ 1219.
(3) 1980 PCr.LJ 191.
(4) 1992 SCMR 1983.
(5) PLD 1974 Lahore, 274.
(6) PLD 1988 SC 25.
5. Mr. Qahir Shah Advocate, learned counsel for petitioner/ complainant argued that the appellant with a motive made firing upon the deceased and his two sons, though there are certain variation, omission in their statements but it cannot cast doubt to the case of prosecution in view of the natural and trust worthy ocular account furnished by injured witnesses P.W. Abdul Ghafoor and P.W.
Abdul Lateef. It was lastly argued that the appellant has neither taken the plea of self-defence during trial of the case nor it has been.Proved from the record indicating the appellant acted in self-defence, the trial Court on proper appreciation of evidence rightly convicted the appellant. The learned counsel in support of his arguments referred the judgments reported in:--
(1) 1999 PCr.LJ Lah: 1381.
(2) 1998 SCMR 1823 (t).
(3) 1995 SCMR 236.
(4) 2003 PCr.LJ Lah. 97(b).
(5) MLD 2000 Lah.
20.
(6) 1985 SCMR 2055 (c).
(7) PLD 1996 SC 274.
(8) 1999 SCMR 1668 (b).
(9) 1999 SCMR 89.
6. Sardar Munir Ahmed Durrani Advocate for State argued that the prosecution has successfully proved the charge against the appellant, the trial Court considering the evidence of eye-witnesses including the positive report of Fire-Arm Expert in respect of Kalashnikov recovered on the disclosure of appellant and the empties collected from the place of incident rightly convicted the appellant for the offence. He to support his view placed reliance on the judgment reported in 2001 PCr.LJ 445.
7. We have heard, the learned counsel for the parties and have perused the record as well as impugned judgment and cited case-laws. Before dealing with the contentions of learned counsel, we would like to reproduce the evidence brought on record during trial.
' P.W.-1 Muhammad Tahir, the complainant stated that he received information of the incident at about 9-00 a.m., at his house situated at Pishin from his tenant Ramzan. He went to Naib Tehsildar Levies Thana and lodged the report Exh.P/1.
' P.W.-2 Abdul Ghafoor, stated that on 7-8-1999 7-30 A.M., he deceased Abdul Zahir, Abdul Sattar and Shah Muhammad butcher came to Surkhab Camp and sit along with the wall of uncle Ramzan's house, in the meanwhile accused Gul Muhammad came out from his house and raised objection for their sitting there, on which his father Abdul Zahir told him that they were sitting in front of their own house and land, after some altercation accused went to his house with a threat that he would see them and came back with a kalashnikov and fired on him. The bullet hit his left thigh and thereafter he fired at his father which hit his belly beneath the naval, his brother Abdul Lateef who was de-boarding sheep from the vehicle rushed to them, the accused fired on his left thigh, they all fell down, Abdul Zahir succumbed to the injuries, the accused made more fires, Levies came there and shifted them to Civil Hospital Pishin and then to Quetta.
' P.W.3. Abdul Lateef stated that on 7-8-1999 at about 7.00 or 7:30 a.m. He along with Nizam when de-boarding sheep from his Datsun vehicle at Surkhab, his father Abdul Zahir, Abdul Ghafoor, Abdul Sattar and Butcher Shah Muhammad came there in a vehicle and sat along with the wall of uncle Ramzan's house, in the meanwhile accused Gul Muhammad came out from his house and asked his father why they were sitting there, his father replied that they were sitting on their own land and in front of their house, after some altercation the accused went back to his house and came with a Kalashnikov and started firing on his father and brother when he tried to save them the accused fired on him which hit his left thigh. He by climbing over the wall went to the house of his uncle Ramzan, the Levies shifted his brother Ghafoor and father to hospital in their vehicle and he reached at hospital in the vehicle of Nizam.
' P.W.4 Abdul Malik Dafedar Levies, stated that on 7-8-1999 at about 7-00 a.m., he on hearing fire- arm reports, within 15 minutes, reached on the spot and shifted injured Zahir and his son to Hospital. He arrested accused Gul Muhammad and sent him to Tehsildar Pishin, who along with accused and other Levies personnel came at the place of incident, the Tehsildar in his presence collected 17 empties and secured blood-stained earth from the place of incident apart from a piece of wood used for meat cutting, two capo, one chappal vide memo. Exh: P/4-A. The accused produced the Kalashnikov and magazine with 29 bullets, which were seized vide Exh: P/4.B the blood-stained clothes of deceased and injured were collected from hospital and seized vide memo. Exh: P/4-C.
' P.W-5 Dr. Anjum Shahzad, stated that on 7-8-1999, at about 8.30 AN., dead body of Abdul Zahir was brought at District Headquarter Hospital Pishin by a Levy man namely Allah Dad. He on examination of the dead body noted the following injuries and issued certificate Exh.P/5-A:--
1. Gun-shot wound on the Para umbilical region.
2. There is gun-shot wound on the left buttock. Wound is 1-1/2". The wound is exit. It also bleeds.
There is fresh and clotted blood on the body and clothes.
' The death was caused due to hemorrhage."
' P.W.6 Farhaj Bukhari is fire-arm Expert, who on examination of the weapon and empties noted his opinion in Certificate Exh: P/6.
' P.W.7 Dr. Sarwar Shah Hashmi stated that on 7-8-1999 at about 14-00 a.m. Injured Abdul Lateef and Abdul .Ghafoor were brought at Hospital for examination and treatment. He found the following injuries on the person of injured Abdul Ghafoor and issued certificate Exh: P/7-A
1. Stitch wound (two stitches) medial side of buttock.
2. Exit wound on lateral side of left thigh (two stitches)
' The following injuries on the person of Abdul Lateef were noted vide Certificate as Exh:P/7-B:--
1. Stitch wound medial side of buttock right side (2 stitches).
2. Stitch wound on lateral side of right thigh (exit wound)
' P.W.8 Maqbool Anwar Naib Tehsildar Pishin, stated that on 7-8-1999 at about 9-00 a.m., Zahir came to his office at Pishin and reported the crime vide F.I.R. No.10 of 1999. He visited the site of occurrence and on completion of investigation filed challan in the Court of learned Additional Sessions Judge-I/STA Quetta and appellant was sent to face trial.
' The appellant in his statement under section 342 Cr.P.C. Deposed that the deceased along with his sons Abdul Ghafoor, Abdul Lateef, butcher Shah Muhammad and others after abusing him and his wife entered into his house and attacked upon them. He in reply to question No.4 stated that he took the Kalashnikov of deceased Abdul Zahir and made fires in self-defence, the Kalashnikov which he produced to the Levies, belonged to the deceased. The accused in his statement on oath under section 340(2) Cr.P.C., stated that he resides at Surkhab Camp and there was a dispute between them in respect of landed property. The deceased, his two sons Lateef and Ghafoor and brother Tahir prior to the incident had come to his land and cut down the growing trees in order to take the possession of land forcibly. On 7-8-1999 Tahir, Zahir, Ghafoor, Lateef, Ramzan, Nizam and others came at Surkhab Camp in a vehicle and parked it near the mosque, they initially started abusing him, when he came out from his house, the complainant party made firing on him from a wall near the Mosque, thereafter Zahir, Lateef and Ghafoor came to his house and started abusing them and threatened him of dire consequences, his wife cried for mercy by producing the Holy Qur'an but they did not stop, when he came out from his house, Zahir pushed his wife and they both fell down with the Holly Book on ground, his wife collected Zahir's Kalashnikov and gave him, Lateef and Ghafoor pointed Kalashnikovs at him and he in self-defence fired one shot each on their legs. The complainant party went back, when Levies came there he produced the Kalashnikov to Tehsildar.
' D.W. Shahzadi alias Bano wife of Gul Muhammad deposed that deceased Zahir, Tahir, Ghafoor and Lateef were known to them, who used to come to the house of their neighbour Ramzan. On the day of incident at about 7.00 A.M the above said persons came to their house and after abusing started firing, she asked her husband not to come out from the house. She tried her best to stop the deceased and his companions by presenting them the Holy Qur'an but they made firing due to which she along with Zahir fell down on the ground with the Holy Book. She took the Kalashnikov of Zahir, which her husband snatched and made one fire each at Ghafoor, Lateef and Zahir.
' The case of prosecution is that the brother of complainant Abdul Zahir along with his two sons Abdul Lateef and Abdul Ghafoor came to Surkhab Camp to their house to attend a Khairat there, when they were sitting along with the wall of uncle Ramzan's house accused came and raised objection for their sitting, there which gave rise to the dispute and concluded with the death of Abdul Zahir and injuring P.Ws. Abdul Lateef and abdul Ghafoor. The accused in his statement under sections 342 and 340(2) Cr.P.C. Has admitted the incident as wall as production of the Kalashnikov to the Investigating Officer from his house with a specific plea of self-defence, grave and sudden provocation. The accused claimed that there was a land dispute between them, on account of which the complainant party on 7-8-1999 at about 7.00 A.M including the deceased and his sons came to Surkhab Camp and parked their vehicle near the mosque and started firing on him and thereafter they came to his house insulted his wife and threatened him. The complainant party compelled him to come out from his house, though his wife presented them the Holly Qur'an but they did not stop, as, soon accused came out from his house Tahir pushed his wife and they both tell down with the Holly Book, his wife collected the Kalashnikov and gave him by which he fired one shot each on deceased and his sons on their legs. P.W.2 Shahzadi wife of accused corroborated and supported the defence version. P.W. Dr. Anjum Shahzad who examined the deceased and issued certificate indicate one gun-shot wound of entrance on the Para umbilical region and one gun-shot wound on the left buttock. P.W. Dr. Sarwar Shah Hashmi who examined the injured witnesses issued certificates showing stitch wound medical side of the buttock left side 2 stitches of Abdul Ghafoor and stitch wound medical side of buttock right side 2 stiches of Abdul Lateef fully corroborates the defence plea. P.W. Maqool Anwar the Investigating Officer stated that P.W. Tahir came at Levies Thana and informed him about the incident, he visited the place of incident and prepared site sketch indicating 10 empties of Kalashnikov were collected near a mosque shown at point " 3 " , the house of Ramzan was located at point " (,) ", the house of accused was shown at point " o ", the door of the house of accused indicated at{{URDU TEXT}} point " {{URDU TEXT}}", and next to it at point " " and " {{URDU TEXT}}" ", blood-stained earth was secured and seven empties of Kalashnikov were collected. The points " {{URDU TEXT}}", " Zi{{URDU TEXT}} " and " f{{URDU TEXT}}", at the sketch are blood-stained marks indicating the deceased and injured while coming back to the mosque were bleeding.
' The injured eye-Witnesses of the incident claimed that they along with their deceased father were sitting along with the wall of their uncle's house Ramzan, the appellant came and raised objection on account of which this incident was taken place. The site sketch reflects the house of accused/appellant and Ramzan are though adjacent but their exit/entrance ways open to different directions, the house of Ramzan opens to south while the house of accused opens to west and there is a orchard between the two houses with a boundary wall. The injured witnesses claimed that Ramzan is their uncle while P.W.-1 denied the fact by disclosing that Ramzan was their tenant, the motive set up by the prosecution for the occurrence could not possibly be the outcome of incident. We are conscious of the fact that the motive does not play effective role when pre- mediated and cold-blooded murder is committed and the absence or proving of motive would not come in the way of the case of prosecution and can be condoned if there is otherwise strong and reliable evidence is support of the case. The motive set up in this case was controverted by the defence with a specific plea, in such circumstances the prosecution was bound to establish the incident was taken place in the manner narrated by the witnesses and not the way disclosed by defence. The motive in the case being substantial in nature was required to be proved and benefit of it certainly goes to the appellant, who floated the plea of self-defence in trial and proved it from the record.
' The learned counsel contended that the site plan prepared by the Investigating officer in the case is not a substantive piece of evidence and be kept out of consideration in view of the ocular account furnished by P. Ws. He in support of his view referred the judgment reported in 1998 SCMR 1823. The point discussed in the case was that the site plan prepared by the draftsman had shown presence of accused at a certain point where from they fired at deceased excluding the name of other accused. It was held that the site plan being not a substantive piece of evidence could not contradict the trustworthy, confidence-inspiring ocular account of the witnesses, the point discussed in the case does not help the prosecution for want of similar facts, further more, the site sketch prepared in the case, which remained unchallenged, supports the defence version. It may be noted the deceased and his sons were residing at Killi .Machan Pishin and they came to Ramzan's house at Surkhab Camp to attend a Khairat along with Abdul Sattar, Butcher Shah Muhammad and Nizam owner of the vehicle. The prosecution did not produce them as independent witness to disclose the real facts and the manner and circumstances which led the parties to the unfortunate incident. P.W. Ramzan in whose house Khairat was being arranged, though cited in the calendar of witnesses but was not examined by the prosecution for unknown reasons.
' The learned counsel for complainant was of the view that since the accused has not taken specific plea of self-defence, grave and sudden provocation during trial of the case as such the introduction of the plea at subsequent stage is after thought. He in support of arguments referred judgments reported in 1985 SCMR 2055 = 1995 SCMR 236. We have gone through the judgments, the plea of self-defence, grave and sudden provocation was not believed as the prosecution successfully proved its case beyond any reasonable doubt and the accused not only failed to establish the plea but no such plea was spelling out of the prosecution record nor there were circumstances for which it can reasonably be deducted ithat the fact narrated by the accused could possibly had occurred, I n such circumstances it was held that the plea of grave and sudden pro vocation casting a heavy onus upon accused was remained unproved.
It is well-settled principal of law that the burden of proof in criminal case the throughout the trial remains on the prosecution and this burden never shifts on the defence, the prosecution is to prove the case against the accused beyond reasonable doubt. The fact that the accused has raised a plea which is found by the Court to be untrue would not C relieve the prosecution from the above burden, nor any adverse inference could be drawn against the accused on account of his failure to prove the plea raised by him, the burden on an accused to establish a plea raised by him, is not as heavy as it is on the prosecution, inasmuch as, an accused discharges his burden if he succeeds in creating a reasonable doubt in the prosecution case. The plea of self-defence, grave and sudden provocation taken-up by the accused is not burdened to prove the same beyond doubt. It is sufficient that the plea raised by an accused if could be reasonable true, the benefit is to be extended to him.
We have considered the prosecution version and that of defence plea in juxta-position in the light of material available on record and are of the view the prosecution has failed to prove its case beyond any reasonable doubt. The plea put forth by the defence is more probable and appeals to the prudent mind.
What has been discussed herein above, we hold the deceased along with his sons and others came to Surkhab Camp early in the morning and went to the house of appellant with a Kalashnikov, who in grave and sudden provocation and self-defence made firing upon deceased and injuring the P. Ws. Has not exceeded from the limits to F constitute an offence amounting to Qatl-i-amd with a motive set up by the prosecution. Consequently the appeal against impugned judgment is allowed and conviction/sentence is set 'aside, the Constitutional petition seeking enhancement of sentence being devoid of any merit is dismissed. The appellant be set at liberty if not required in any case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.